Post-Enactment Report Marriage Act 2015 (No. 35 of 2015) (Dáil Éireann – Standing Order 164A) (Seanad Éireann – Standing Order 168) April 2019 Post Enactment Report Marriage Act 2015 (No. 35 of 2015) 1. Background to the Marriage Act 2015 A Constitutional Convention was established in 2012 to consider the question of whether an amendment should be made to the Constitution of Ireland to provide for marriage of same- sex couples. The Convention reported on that question in July 2013, and made 3 main recommendations: 1. That the Constitution be changed to allow for civil marriage for same-sex couples. 2. That an amendment be directive. 3. That further legislative change be made in the law on parentage, guardianship and upbringing of children. Almost 80% of the membership favoured changing the Constitution to allow for civil marriage for same-sex couples. The Government decided to hold a referendum on the question of allowing marriage to be contracted by two persons without distinction as to their sex. The Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 proposed to insert the following section after section 3 of Article 41 of the Constitution: “4 Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” The marriage equality referendum was held on 22 May 2015 and had a turnout of 61% of the electorate. The referendum was passed by 62% of voters which meant Ireland became the first sovereign state to extend marriage rights to same-sex couples by popular vote. Only one constituency returned a negative vote. Legislative effect to the constitutional amendment was made by the Marriage Act 2015 which was enacted on 29 October 2015 and came into operation on 16 November 2015. As of that date, the marriages of same-sex couples who married abroad were recognised in Ireland. 2. Main elements of the Marriage Act 2015 The Marriage Act 2015 amends the Civil Registration Act 2004 to remove the impediment to marriage of the parties being of the same sex and repeals certain provisions of Part 7A of that Act relating to the registration of civil partnerships. The Act also provides that religious bodies will not be obliged to recognise a particular form of marriage ceremony and that religious solemnisers will not be obliged to solemnise a marriage where such a marriage ceremony is not recognised by the religious body of which he/she is a member. It also provides for the recognition of certain foreign relationships. Part 6 of the Marriage Act 2015 provides for miscellaneous consequential amendments to other Acts. The main elements of the Marriage Act 2015 are as follows: Part 2 - Impediments to Marriage Part 2 of the Act contains provisions relating to the removal of impediments to marriage for same-sex couples. Section 4 amends the existing impediments to marriage which were provided for by the Civil Registration Act 2004. Section 4(a) deletes section 2(2)(e) of the Civil Registration Act 2004 under which it was an impediment to marriage if the parties to the intended marriage were of the same sex. Section 4(b) modifies section 2(2)(f), which set out that it was an impediment to marriage if either or both of the parties was a party to a subsisting civil partnership. The modification, together with the new section 2B of the Civil Registration Act 2004 inserted by section 6 of the Marriage Act 2015, allows civilly partnered couples to marry one another without having to dissolve their civil partnership. The impediment applies as normal for individuals wishing to marry someone other than their civil partner. Section 4(c) inserts a new paragraph (g) to provide that a marriage contracted between a same-sex couple falling within the prohibited degrees of consanguinity or affinity will be void. Those prohibited degrees are provided for under a new section 2A of the Civil Registration Act 2004, inserted by section 5 of the Marriage Act 2015. Section 5 inserts a new section 2A into the Civil Registration Act 2004. The purpose of section 2A is to ensure that the impediments which prevented couples of the opposite sex from marrying one another if within the prohibited degrees of relationship either on the grounds of consanguinity (where the couple is related by blood) or affinity (where the couple is related by marriage) would apply also to marriages between same-sex couples. A marriage would be void if the couple went ahead and had the marriage solemnised despite being within these prohibited degrees. Section 6 inserts a new section 2B into the Civil Registration Act 2004. The purpose of section 2B was to enable a civilly partnered couple to marry one another without having firstly to dissolve their civil partnership. The provision was considered necessary as it had previously been an impediment to marriage for either party to be in a civil partnership. Part 3 - Religious Bodies Part 3 of the Act re-states the protections that will continue to apply with regard to religious bodies and to religious solemnisers. It stipulates that neither the Marriage Act 2015 nor any other Act would oblige: (1) a religious body to recognise a particular form of marriage ceremony; (2) a religious solemniser to solemnise a marriage that is not in accordance with a form of ceremony recognised by the religious body on whose behalf the solemniser is operating. Part 4 - Civil Partnership Part 4 of the Marriage Act 2015 provides for substantial amendment of the law in relation to civil partnership. Section 8 repeals section 2(2A) of the Civil Registration Act 2004 which concerns the impediments to registering a civil partnership. The section also provides for the repeal of specified sections of Part 7A so that civil partnership would be closed to new entrants six months after the commencement of the Marriage Act 2015, except where an unsubstantiated objection delayed registration of a civil partnership. The provisions of Part 7A which were retained were mainly technical provisions enabling correction or rectification of civil partnership registration forms and completion or correction of entries on the Register. Section 9 removes the 3-month notice requirement for civil partners who have already registered their civil partnership in Ireland and who wish to marry one another. The notice requirement is not needed as the couple will have already provided the necessary documentation to the Registrar to establish their identities. Section 10 inserts a new Part 7C into the Civil Registration Act 2004 which sets out the transitional arrangements that will apply to civil partners wishing to marry. Section 59K enables a record to be entered on the register of civil partnerships of the dissolution of a civil partnership where the couple have now married one another. Section 59L(1) enables a couple who have notified the registrar of their intention to enter a civil partnership to change that notification into a notification of their intention to marry. Subsection (2) is a transitional provision that enabled certain couples to register their civil partnerships after the Marriage Act 2015 was commenced. There were two categories of couple who were able to register civil partnerships. The first category was couples who had completed a civil partnership registration form before commencement. They were able to become civilly partnered within the period for which the form remained valid (i.e. a maximum of 6 months). The second category was couples whose civil partnerships were delayed because of an unsubstantiated objection. They were able to proceed with their civil partnership. Section 11 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to provide that a civil partnership is dissolved once the couple marry one another. Part 5 - Recognition of Certain Foreign Relationships Part 5 of the Marriage Act 2015 deals with the recognition of certain foreign relationships so that marriages lawfully contracted abroad by same-sex couples will be recognised as marriages in Ireland. Section 12 is designed to enable marriages contracted abroad between couples of the same sex to be recognised as marriages in Ireland. Subsection (1) specifies that a marriage contracted abroad will not be prevented from being recognised as a marriage in Ireland by virtue of the couple being of the same sex. Subsection (2) provides that a marriage contracted abroad between two persons of the same sex will be recognised as a marriage in Ireland from the date either of commencement of this section or of their marriage, whichever is the later. Subsection (3) provides that a marriage contracted abroad between two persons of the same sex will not be prevented from being recognised as a marriage in Ireland even if it has hitherto been recognised as a civil partnership under a Section 5 Order made by the Minister for Justice and Equality. (Orders under section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 set out the legal relationships that are recognised as civil partnerships in Ireland.) Subsection (4) specifies that a marriage contracted abroad between two persons of the same sex will not be recognised as a marriage in Ireland if already dissolved. Subsection (5) allows that where a married couple wish to divorce, the period spent living apart will date from the date on which they began to live apart even if that date was prior to their relationship being recognised as a marriage in Ireland. Subsections (6) to (10) amend Section 5 Orders to remove the provisions which recognised marriages contracted between same-sex couples abroad as civil partnerships. Section 13 amends the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to end the recognition under Irish law of civil partnerships that are contracted abroad later than six months following the commencement of this Act.